Colo. theater shooting jurors say death penalty can be considered

CENTENNIAL, Colo. – The jurors who convicted James Holmes of murder in the Colorado theater shooting unanimously decided Thursday that they can consider the death penalty in his sentencing.

They said capital punishment is justified because Holmes murdered a large number of victims; caused a grave risk of death to others; committed murder in a heinous, cruel or depraved manner; and laid in wait or ambush.

One factor jurors said prosecutors did not prove was that Holmes intentionally killed a child, but the other "aggravating factors" ensure that jurors will continue to consider whether he should die for his crimes.

Prosecutors still must clear two more hurdles before Holmes can be sentenced to die.

Prosecutors said Holmes wanted to murder as many as he could in the audience of more than 400 people but failed to kill more than 12 because his assault rifle jammed. The defense offered no counter-argument in this first phase of his sentencing.

The defense will now lead the next phase, trying to show that his mental illness and other "mitigating factors" make it wrong to execute him in any case. Then, jurors will then deliberate for a second time, deciding whether the extent of his mental problems outweighs the lifelong suffering Holmes caused.

If so, the trial would end there, with a life sentence instead of the death penalty.

If not, the sentencing will move into a third and final phase, in which victims and their relatives would describe the impacts of Holmes' crimes.

While the jury will decide the murder sentences, Colorado law already establishes the penalties for his convictions on attempted murder and other charges. Holmes wounded 58 people and 12 others were injured in the chaos of the attack.

On Wednesday, prosecutor Rich Orman showed jurors photos of each person killed and read their names — bringing some of their relatives in the courtroom to tears. Orman reminded jurors that Holmes threw tear gas and sprayed so much gunfire that even moviegoers hiding behind seats couldn't avoid being hurt.

"The victims were unaware of any danger, watching a movie, in a theater, a place of joy and of safety," he said. "The victims died surrounded by screaming, by pain and by anguish."

Holmes deliberately and cruelly killed all of them, including 6-year-old Veronica Moser-Sullivan who "had four gunshot wounds to her little body," Orman said.

But jurors didn't agree that Holmes showed the necessary intent in the girl's death for this to be an "aggravating factor." They came to that decision after reviewing a video in which Holmes asked police: "There weren't any children hurt, were there?"